Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-03-12
mE PEOPLE VS.. MELoNE.

THE PEOPLE VS.. MELONE.
Tie Proceedings Instituted by Controller
Dunn Barred by Statute of Limitations.
Judge Van Fleet yesterday rendered his
decision in the cases Of The People, ex rel,
ETC., VS.. Drury Melone Robert NJ. Hamil-
ton and James GarolsE and The People, ex
rel, etc, VS.. Drury Melone, which cases
were Instituted by Controller Dugn. Fol
ing is q full synopsis
a demurrer was interposed to the conf
plant in each of the shove cases. The first
is an action on the Official bond of Drury
Meloue, as Secretary of State for the term
Hamilton and Carolea being sureties on the
bond The complaint alleges as breach
of said bond that Melone during his said
term collected and received as fees of said
Office the sum of s1ll07 TO- which he has
not paid over to the State.
Tie defendants claim that the actions are
barred, and rely chiefly upon Sections 337,
! $3.50 and 343 of the Code Of Civil Civil Pro
cedure in connection with Section 345 O!
the same Code. Plaintiff contends, on the
other hand, first, that neither of these sec
tons apply; and second, that, if they would
otherwise so apply, such application is pre-
vented and the bar of the statute avoided
by the provisions of Section 437 of the Po-
lltical Code.
Section 337 of the Code of Civil Procedure
requires IAN action upon any contract
obligation, or liability, founded upon an
instrument in writing executed in this
State to be brought within four years
after the cause of action acerues. The first
subdivision dissection 33efxes Limitation
of two years for an action upon a con-
tract obligation, or liability not founded
upon an instrument in writing" and Sec
ton $40 provides that these limitations
apply to actions brought in the name OF
the State, or for the benefits of the State in
the same manner as to actions brought by
private parties"
Had these actions been brought by pri-
waite parties the provisions of Section 537
would apply SO the action upon the bond,
and those of the first subdivision of Section
500 to the action against Melone indiyid-
ually.
The decision N .Piller VS.. S. P. R. R. Co.
(5s Cal, 42) is conclusive against plaintiff
position, that the language of Subdivision
OF Section 339 limits that used in sub
division 1. The Court there held that
the two years limitation found in the
first subdivision of Section $50 is applicable
TO all actions at las not specifically men
toned in other portions of the statute
The action on the bond is fully within
the words of Section 237. But it may be
doubted whether that action also is not
governed by the first clause of Section 500,
but one OK the other Of these two sections
undoubtedly applies.
If these actions, then, had been brought
by private parties" they would have been
governed by the provisions of the sections
cited. There is nothing in the words of
the statute, nor, it may be added, in its
scope and intent, prescribing any rule in
actions brought against State officers diff
ferent from that prescribed in actions against
other persons on like causes. Nor does it
appear that COUNSEL for plaintiff seriously
claim that any such difference exists, except
where the State is plaintiff Does that fact,
then, alter the ruler
The language of Section 345 expressly
removes any distinction between actions
brought by the State or for its beneft, and
those brought by private parties. In other
words, in any case il which private
plaintiff would be barred, the State will
also be barred.
But il is contended by plaintiff that these
actions are brought under Section 437 Of
the Political Code, and that said section
prescribes a different rule, and in effect.
provides that there shall be no limitation
in such cases. This claim is chiefly, if not
wholly, based upon the use of the word
" whenever at the beginning OF that sec
ton. The argument is that this section
makes it the duty of the Controller 10 call
upon y any delinquent State officer for ac-
count and payment, without regard to the
time that may have elapsed since the col
lection of the money" If the word when
ever as used in this section is TO be con-
strued as relating at all to The matter of
time, then the meaning of the section
might fairly be taken to be that the Con-
troller must bring the action at the very
time the default occurs, at whatever time
that may happen. Clearly, this word does
not grammatieally qualify the words re-
lating to the action of the Controller, but
those relating to the default; and the sub
stance of the section is, that the Control
Ter must state an account with the de-
faulting officer, 4. whenever such officer
" fails TO render an account and make set
tlement with the Controller within the time
prescribed by law If this word is to be
taken as referring to the time when the
Controller may take action, the argument
of plaintiff proves too much, and, instead
of removing all limitation actually i'm
ports into the statute a limitation more
stringent than that relied on By the defend
ant
But this word, according TO the context
and the approved meaning of language
and according to the universal usage in our
statutory phraseology, is clearly not in
tended to refer to the question of time;
but its use here, as elsewhere, is rather in
tended to negative the idea of any particu-
lar time In. meaning it is exactly equiv
alent to the expression In the event
that" or to the simple word, eff" and
this section merely means If Cor in the
event that any person has received mon
eys . > 9 and fails to render an account
thereof, 3 the Controller must state an
account with such person. etc. So read,
it is plain that this section does not in any
manner, remove the bar of the limitations
prescribed by the Code of Civil Procedure.
That this Interpretation is the correct one
may be seen by comparison of the follow
ing sections of the codes, taken at random
from among many in which the word
" whenever is employed, in each of
which the expression in the event that,
or if may be substituted for when
ever without altering the meaning Code
Civ. Proceed, Sections 574. go, 764, 772,
799, sol, s04. 1907, 1884, 104S, 1859, 1854,
I'LL, 1196, 1913, 1921 1888, 1896, 1851.
Civil Code, Sections II, go, 1906, 1862,
1914. Penal Code, Sections $50, GIL, 731,
Isl, 1857. 1853.
It viii be seen that this section provides
for two cases-first, that of person charged
with the receipt of moneys belonging to